This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2011AP1705-CR

Cir. Ct. No.2009CF50

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT I

State of Wisconsin,

Plaintiff-Respondent,

v.

Samuel T. Moreland,

Defendant-Appellant.

APPEAL
from a judgment and an order of the circuit court for Milwaukee County:jeffrey
a. conen, Judge.Affirmed.

Before Higginbotham, Sherman and Blanchard, JJ.

¶1PER CURIAM. Samuel Moreland appeals a
judgment of conviction for first-degree reckless homicide and an order denying
his postconviction motion.Moreland seeks
a new trial based on: (1) his trial counsel’s failing to present expert
testimony to rebut the State’s evidence as to the victim’s cause of death and
counsel’s failing to impeach one of the State’s witnesses; (2) the circuit
court’s allowing an expert witness for the State to testify regarding a
toxicology analysis relying in part on results of tests the expert is
professionally familiar with but did not personally perform; and (3) the
circuit court’s denying Moreland’s request to adjourn the trial and order the
state crime laboratory to retest the victim’s blood.We reject these contentions, and affirm.

Background

¶2In January 2009, the State charged Moreland with first-degree
reckless homicide in the death of Niki Domineck.According to the criminal complaint, police
and paramedics responded to a call from Moreland’s apartment reporting that
Domineck was not breathing.Domineck was
later pronounced dead at a hospital.A
toxicology analysis performed by Dr. Susan Gock, Technical Director of the
Milwaukee County Medical Examiner Toxicology Unit, revealed the cause of death
was an overdose of the pain medication Fentanyl.

¶3Moreland gave police the following account of the events
leading up to Domineck’s death.Moreland
discovered that Domineck had taken one of his prescription pain medication
patches, which contained the medication Fentanyl, and placed it on her
leg.Moreland removed the patch from
Domineck’s leg and told her it was wrong for her to use the patch.Moreland and Domineck then went to sleep.The next day Moreland discovered that
Domineck was cold and non-responsive, and Moreland called 9-1-1.

¶4Two individuals, Andrew Goldberg and Latoya Sanders, later told
police that Moreland informed them after Domineck’s death that he had given Domineck
the Fentanyl patch.Goldberg stated that
Moreland said that Moreland and Domineck cut the patch open so that they could orally
ingest the gel inside the patch.

¶5The Milwaukee County Medical Examiner analyst referenced
above who had performed the toxicology analysis of Domineck’s blood, Dr. Gock,
was unavailable to testify at trial due to serious health issues.The State offered testimony by Dr. Gock’s
supervisor, Dr. Steven Wong, as to his independent opinion based on the results
of the testing done by Dr. Gock. Moreland moved to exclude Dr. Wong’s testimony,
contending that allowing Dr. Wong to testify as to his opinion based in part on
Dr. Gock’s analysis violated Moreland’s Sixth Amendment right to confrontation.
The circuit court denied Moreland’s
motion to exclude Dr. Wong’s testimony. Moreland
then moved to adjourn the trial to have the evidence retested by the state crime
laboratory.The court denied the
motion.

¶6Dr. Wong testified at trial that he analyzed the data that
was collected in connection with the case number assigned to Domineck’s case,
and determined that Fentanyl was present in her blood at a potentially fatal
concentration of twenty-three nanograms per milliliter.

¶7A pharmacist testified for the State that the packet of
Fentanyl patches retrieved from Moreland’s apartment were for Fentanyl patches
that contain a gel reservoir of the medicine.He testified that it would be impossible to obtain a blood level of
Fentanyl of twenty-three nanograms per milliliter by wearing one patch, but
that it would be possible to reach that level by wearing several patches for a
few days or by ingesting the patch. However,
the parties later reached a stipulation that the type of patch retrieved from
Moreland’s apartment was an adhesive layer style patch that did not contain the
medicine in gel form.

¶8The State also presented testimony by Goldberg and Sanders.Both testified that Moreland informed them he
caused Domineck’s death by giving her the Fentanyl patch.

¶9Defense counsel cross-examined Dr. Wong as to his involvement
in the testing and argued in closing that the State had failed to offer
sufficient evidence that Domineck’s blood contained a fatal level of
Fentanyl.Defense counsel also argued
that Goldberg and Sanders were not credible, including Goldberg’s story that
Moreland reported cutting open a patch to reach the gel inside was false because
Moreland’s type of patch did not contain any gel. Defense counsel argued that,
as opposed to the State’s version, Moreland had provided police with a credible
version of the events leading to Domineck’s death.

¶10Moreland was convicted on a jury verdict, and filed a
postconviction motion for a new trial.Moreland claimed ineffective assistance of counsel and sought a new
trial in the interest of justice.The
court denied the motion without an evidentiary hearing. Moreland appeals.

Discussion

¶11Moreland asserts that his attorney erred by failing to present
expert testimony questioning whether it would have been possible for Domineck
to orally ingest a fatal amount of Fentanyl from the type of patch located in
Moreland’s apartment.He asserts that he
was therefore denied the effective assistance of counsel.SeeStrickland
v. Washington, 466 U.S. 668 (1984).We disagree.

¶12Moreland argues that the State’s case was based on its theory
that Moreland supplied Domineck with a patch containing Fentanyl in gel
form.He points out that Goldberg
testified that Moreland informed him that Moreland and Domineck ripped open the
patch and sucked out the gel, and the State presented testimony by a pharmacist
that the patch retrieved from Moreland’s apartment contained gel.Moreland further points out that the parties
later entered a stipulation that the patch retrieved from Moreland’s apartment
contained the medicine in an adhesive layer rather than in a gel.Moreland argues that he was denied the
effective assistance of counsel when his counsel failed to present evidence
that a person could not or may not be able to reach a fatal level of Fentanyl
in his or her blood by orally ingesting the medicine from a patch containing
Fentanyl in an adhesive layer.Moreland
cites evaluations of the adhesive layer style patch performed by Dr. Gordon
Flynn and Dr. H. Brian Goldman in 2004, indicating that the medicine cannot be
withdrawn for oral ingestion from the adhesive layer style patch in the same
way it can be withdrawn for oral ingestion from the gel patch and that the
adhesive layer style patch does not carry a high risk of abuse.

¶13The State responds that a defense expert on the adhesive layer
style Fentanyl patch would not have been able to explain how Domineck obtained
a fatal concentration of Fentanyl in her blood.It also cites opposition to the above referenced opinions of Flynn and
Goldman. This opposition was filed with
the FDA by Dr. Daniel Brookoff and Dr. Eric Voth, taking the position that the
adhesive layer style patch does have the potential for abuse by oral
ingestion.The State argues that any
expert the defense may have presented at trial would have been confronted by
this debate, and would not have been persuasive in opining that it would have
been impossible to ingest the medication from the type of patch located in
Moreland’s apartment.Additionally, the
State asserts, Goldberg testified that Moreland told him he cleaned up his
apartment to dispose of paraphernalia before emergency personnel arrived, allowing
the jury to reasonably infer that there may have been other types of Fentanyl patches
in the apartment.

¶14We agree with the State that defense counsel was not
ineffective by failing to present expert testimony as to the alleged
impossibility that one could effectively orally ingest Fentanyl from an
adhesive layer style patch.At trial, the
State presented expert testimony that a fatal level of Fentanyl caused
Domineck’s death, and that the type of patch Moreland had in his apartment
contained a gel which, if ingested, could have caused Domineck to obtain that
amount of Fentanyl in her blood.The
State also presented testimony by Goldberg and Sanders, claiming that Moreland
told them that he supplied Domineck with a Fentanyl patch that caused her death.Goldberg also claimed that Moreland reported
that Moreland and Domineck ingested the gel inside Moreland’s Fentanyl patch.Moreland countered the State’s case by
obtaining a stipulation with the State that the type of patch retrieved from
his apartment did not contain a gel, but rather contained Fentanyl in an
adhesive layer.Defense counsel argued
in closing that Goldberg must have been lying when he testified that Moreland
told him Domineck ingested gel from Moreland’s Fentanyl patch.Counsel also attacked Sanders’ credibility,
arguing that Sanders had hearing problems, and thus may have misunderstood, and
also that Sanders had ill will towards Moreland.Counsel also argued that the State had not
presented sufficient scientific evidence to support its theory that Domineck
died from a Fentanyl overdose.Counsel
urged the jury to accept the version that Moreland had provided to police, that
is, that Domineck had taken one of Moreland’s patches and placed it on her leg,
and that Moreland took the patch back. Counsel
argued from this premise that there was no way to know how much Fentanyl
Domineck had already taken before getting to Moreland’s apartment.

¶15Thus, defense counsel effectively challenged the State’s
evidence that Moreland supplied Domineck with Fentanyl, including whether he
supplied her with a patch containing gel.We conclude that, even assuming trial counsel erred by failing to
present expert testimony as to whether it would have been possible to orally
ingest Fentanyl from the type of patch located in Moreland’s apartment, that
error was not prejudicial.Seeid. at 694 (trial counsel error
deprives defendant of effective assistance of counsel only when the error was
prejudicial, that is, when there is a reasonable probability of a different
result at trial absent that error).In
light of the evidence set forth above, there is not a reasonable probability
that the outcome of the trial would have been different had a defense expert
testified to one side of an apparent medical debate over whether it would be
possible to orally ingest a concentrated amount of Fentanyl from an adhesive
layer style patch.Seeid.Thus, counsel was
not ineffective by failing to present that evidence.

¶16Moreland also contends that trial counsel’s failure to present
expert testimony on the feasibility of orally ingesting Fentanyl from an
adhesive layer style patch prevented the real controversy from reaching the
jury, and thus the circuit court erroneously exercised its discretion by
denying his motion for a new trial in the interest of justice.SeeState
v. Harp, 161 Wis. 2d 773, 779, 469 N.W.2d 210 (Ct. App. 1991) (circuit
courts have discretion to grant new trials in the interest of justice).Moreland contends that the real controversy
is not whether Domineck died from a Fentanyl overdose, but who she received the
Fentanyl from.He contends that evidence
that Moreland’s patch did not contain the gel form of Fentanyl would have
submitted to the jury the question of whether Domineck obtained a gel form of
the patch elsewhere.However, the real
controversy in this case was not the exact method that Domineck used to obtain
a fatal level of Fentanyl in her system; rather, the real controversy was
whether Moreland supplied Domineck with Fentanyl, which ultimately caused her
death.As explained above, that issue
was submitted to the jury, and we discern no erroneous exercise of the circuit
court’s discretion in denying Moreland’s motion for a new trial in the interest
of justice.

¶17Next, Moreland contends that his trial counsel was ineffective
by failing to impeach Goldberg by asking him how many times he had been
criminally convicted.We disagree.

¶18We conclude that, even if counsel erred by failing to impeach
Goldberg by questioning him as to the number of his criminal convictions, that
error was not prejudicial.SeeStrickland, 466 U.S. at 694.On direct examination, Goldberg stated that
he was confined with Moreland at the Milwaukee Secure Detention Facility, and
that Moreland and Goldberg had cells next to each other. On cross, defense counsel elicited from
Goldberg that Goldberg is addicted to pain medication and had informed others
he had prescriptions that he did not actually have. Defense counsel emphasized Goldberg’s lack of
credibility in closing arguments, calling Goldberg “a pathetic drug addict,”
and arguing that Goldberg lied about his medications and lied in testifying
that Moreland told Goldberg he gave Domineck a gel patch.Thus, the jury heard that Goldberg was
incarcerated, had a pain medication addiction, and admitted lying about his
prescriptions.Had counsel also elicited
the number of Goldberg’s criminal convictions, which Moreland states is ten,
Goldberg’s credibility would not have been significantly affected.That is, the jury already knew that Goldberg
had a history of crime, pain medication addiction, and lying regarding
controlled substances, and the additional information of the number of his criminal
convictions would not have likely had a significant impact on the jury’s
assessment of Goldberg’s credibility.Because negative information as to Goldberg’s credibility was already
highlighted to the jury, we conclude that there is not a reasonable probability
of a different result at trial had counsel elicited from Goldberg his number of
prior convictions.Seeid.

¶19Next, Moreland contends that the circuit court’s allowing Dr.
Wong to testify regarding the toxicology analysis of Domineck’s blood violated
Moreland’s right to confrontation under the Sixth Amendment.SeeCrawford
v. Washington, 541 U.S. 36, 53-54 (2004) (holding that the Sixth
Amendment “condition[s] admissibility of an absent witness’s examination on
unavailability and a prior opportunity to cross-examine”).He argues that Dr. Wong’s testimony as to his
own analysis based in part on testing conducted by Dr. Gock violated Moreland’s
right to confrontation, because defense counsel was unable to cross-examine Dr.
Gock as to her methods, whether she was affected by her health issues when
conducting the testing, and whether she tested the proper sample.We disagree.

¶20In State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, our
supreme court held that, under certain circumstances, the right of
confrontation may be satisfied when an expert testifies as to his or her own
opinion based in part on work performed by another.The court explained that, while one expert
may not act as a conduit for another, an expert may rely in part on the work of
another in reaching an expert opinion without violating the defendant’s right
to confrontation.Id., ¶¶17-19.Thus,

the presence and availability for cross-examination of
a highly qualified witness, who is familiar with the procedures at hand,
supervises or reviews the work of the testing analyst, and renders her own
expert opinion is sufficient to protect a defendant’s right to confrontation,
despite the fact that the expert was not the person who performed the mechanics
of the original tests.

Id., ¶20.

¶21Here, Dr. Wong testified that he is the Scientific Director of
the Toxicology Department at the Milwaukee County Medical Examiner’s Office.He stated that, as part of his employment, he
is familiar with the procedure for testing blood for narcotics.Dr. Wong reviewed the toxicology report for
the blood sample labeled with the case number connected with this case.Dr. Wong stated that there were two tests
performed on the blood: a screening test and a confirmation test.Dr. Wong stated that his analysis of the data
generated from the screening test indicated that Fentanyl was present in the
blood.He stated that his analysis of
the data generated in the confirmation test indicated that Fentanyl was present
in the blood at a concentration of twenty-three nanograms per milliliter.Dr. Wong stated that, based on his training
and experience, that concentration of Fentanyl was potentially fatal.Dr. Wong also explained that he did not
perform the tests that generated the data he analyzed and he could not say from
personal knowledge how the tests were performed in this particular case, but
that he knows how the tests are generally performed and that he is familiar
with the testing protocols.On cross,
defense counsel elicited from Dr. Wong that the accuracy of the tests depends
on the skill and honesty of the analyst performing the tests.

¶22We conclude that here, as in Williams,

the presence and availability for cross-examination of
a highly qualified witness, who [was] familiar with the procedures at hand, … review[ed]
the work of the testing analyst, and render[ed his] own expert opinion [was]
sufficient to protect [Moreland’s] right to confrontation, despite the fact
that the expert was not the person who performed the mechanics of the original
tests.

Seeid., ¶20.Accordingly,
we reject Moreland’s contention that his right to confrontation was violated by
Dr. Wong’s testimony.

¶23Finally, Moreland contends that he was entitled to have the
state crime laboratory retest Domineck’s blood samples under Wis. Stat. § 165.79(1) (2009-10)[1]
(“Upon request of a defendant in a felony action, approved by the presiding
judge, the laboratories shall conduct analyses of evidence on behalf of the
defendant.”).Moreland contends that the
circuit court erroneously exercised its discretion by denying his request for
retesting without analyzing the facts on the record or using a rational process
to reach a decision.SeeState v. Pittman, 174 Wis. 2d 255,
268, 496 N.W.2d 74 (1993).Rather, Moreland
asserts, the court relied on the fact that Moreland had not requested retesting
earlier.Moreland points out that he
discovered that Dr. Gock would be unavailable to testify due to serious health
problems only ten days before trial, and thus he had no reason to request
retesting previously.

¶24We conclude that the circuit court properly exercised its
discretion by denying Moreland’s motion to adjourn the trial and for the state
crime laboratory to retest Domineck’s blood. The circuit court explained that
it denied Moreland’s motion to adjourn the trial and for the laboratory to
retest the blood because the motion was made on the first day of trial, and
Moreland had not established a basis to believe the test results were
inaccurate. Thus, the court relied on
the facts in the record to reach a rational result, and we have no basis to
disturb the court’s decision.We affirm.

By the Court.—Judgment and order
affirmed.

This
opinion will not be published.SeeWis.
Stat. Rule 809.23(1)(b)5.

[1]All references to the Wisconsin Statutes are to the
2007-08 version unless otherwise noted.